Symposium: A fair and proper application of the Fourteenth Amendment

June 26, 2015 is a day to celebrate.  (Indeed, we are going to have to make June 26 some sort of gay rights holiday now that Lawrence v. Texas, United States v. Windsor and Obergefell v. Hodges all came down on that day.)   The Court followed through on the promise of the Constitution, ruling that the Fourteenth Amendment does not allow states to condemn same-sex couples to permanent second-class status solely because of their sexual orientation. 

Despite the vituperative criticism of the dissents (both substantive and stylistic), Justice Anthony Kennedy’s majority opinion is both rhetorically eloquent and legally persuasive.  You can like or dislike his writing style, but the majority opinion simply applied the law as it stands.  Those who disagree are able to do so only by ignoring all of the legal developments that have occurred in this area from Romer v. Evans, to Lawrence, to Windsor.  As Justice Scalia himself explained in detail in his Lawrence and Windsor dissents, once you provide some basic constitutional protections to LGBT people, there is no logical stopping point short of marriage equality.  Those cases, in turn, were fully consistent with the Court’s longstanding recognition that the central purpose of the Fourteenth Amendment is to protect minority groups that have long experienced irrational prejudice and are unable to protect themselves in the democratic process.

There are two basic disagreements between the majority and the dissenters.  The first is over whether it was right for the Court, in Lawrence, to strike moral disapproval from the list of potential state justifications for discrimination against gay and lesbian people and couples.  Once you do that, as Justice Kennedy’s opinion makes clear, it simply makes no sense to provide less recognition and less protection to the millions of same-sex couples who have formed long-term relationships, many of them raising children.  For twelve years, lawyers defending the government’s right to continue discriminating have twisted themselves into knots to find some other plausible justification.  The best they could do was point out that only straight couples have accidental pregnancies — suggesting bizarrely that the purpose of marriage is confined to preventing or responding to such accidents.  But for Justice Scalia et al., this is not a problem.  They simply continue to assert the government’s right to punish and disfavor gay people because the government does not like or approve of us and how we live.

The other fundamental disagreement is over whether constitutional protections for liberty are entirely static or whether, instead, they evolve as human understanding and social conditions evolve.  In Obergefell, as in Lawrence and Windsor, Justice Kennedy strongly reaffirmed the latter position.  As he put it, “The nature of injustice is that we may not always see it in our own times.  The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to further generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”

In one sense you can read this as a flat rejection of constitutional “originalism.”  That is what has the dissenters so exercised.  They want to continue to operate under the Washington v. Glucksberg principle that the Due Process Clause does not protect any form of liberty that was not already protected at the time the Constitution and the Fourteenth Amendment were ratified.  They see the alternative of an evolving Constitution as anathema because it allows recognition of new forms of liberty like the right of a gay couple to live together and be treated equally.

But Justice Kennedy in fact makes the claim that his view is more consistent with the actual original intent of the Framers – that they drafted our basic constitutional protections broadly so that they would be interpreted differently over time as the world, and our understanding of it, evolve.  In his view, the war between originalists and advocates of the “living Constitution” misses the point:  evolving protections for basic rights were the original intent.

A variation on the evolving liberty theme is Justice Kennedy’s explanation of how the Equal Protection Clause can be used in conjunction with recognized liberty interests to move doctrine forward.  As he puts it, “in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.”  The example he gives is the cases in the 1970s and 1980s that used equal protection principles to eradicate laws that still mandated an unequal form of marriage in which the husband was superior to the wife in rights and power.  “[T]hese precedents show the Equal Protection Clause can help to identify and correct inequalities in the institution of marriage, vindicating precepts of liberty and equality under the Constitution.”  That, he argues, is all we are doing today.

He then goes on to reject the notion that greater “caution” is warranted.   After noting all the debate and legal wrangling that has gone on over the issue of marriage equality over two decades, and noting that the “dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right,” he makes a further point – that caution can itself be harmful.  Caution, he says, is just another way of saying that the Court should delay rectifying ongoing injustices.  As an example of the Court mistakenly taking a cautious approach, he cites Bowers v. Hardwick, the 1986 decision in which the Court refused to invalidate sodomy laws.  That denial of fundamental rights caused “pain and humiliation,” and although “Bowers was eventually repudiated in Lawrence, men and women were harmed in the interim, and the substantial effects of those injuries no doubt lingered long after Bowers was overruled.”

The dissenters, of course, say that the Court is making a mistake when it takes this issue away from democratic institutions and decides for itself.  But these are the pleas that are always made by those who disagree with a new constitutional right or restriction.  The tables were turned, for example, when the Court in Shelby County created a new doctrine of equal state standing and used it to effectively invalidate Section 5 of the Voting Rights Act.  Somehow the Chief Justice sees this ruling as the equivalent of Dred Scott and Lochner but did not draw such a comparison two years ago.

Perhaps more interesting and worthy of consideration is the claim that advocates of marriage equality have made a mistake because they have lost forever the opportunity to win on the issue democratically.  As the Chief Justice puts it, “however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever:  the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause.”  He makes the further claim that “[p]eople denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide.”

 If this empirical claim were clearly right, it would be a matter worth worrying about.  But aside from Roe v. Wade, there are few if any examples of people over the long term rejecting the legitimacy of a Supreme Court decision on a controversial issue.  To the contrary, most of the time, the Court plays a helpful role in educating the public about the need to respect the rights of others.  The cause of civil rights was not set back by Brown v. Board of Education.  Nor was the cause of women’s rights set back by Justice Ginsburg’s series of victories in the 1970s.  No one (or almost no one) protests the right to use contraception recognized in Griswold v. Connecticut.  My guess is that Obergefell will ultimately be just as well accepted.  Sixty percent of the American people already support marriage equality, and that percentage is certain to go up in the next few years.  This is a case of the Court responding to a claim to equality that had already won the day with most of the American people.